Sometimes a publication ban is legitimate

Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, upholds the mandatory publication ban provisions of the Criminal Code dealing with bail hearings.  In so doing the Supreme Court made clear that freedom of expression can co-exist with the rights of an accused to a fair trial.  The decision carefully balances the importance of open courts, so that the public can see what is happening and be assured justice is being done, with the need to ensure parties in legal proceedings have a free hearing with litigation decisions based on the case before the court and not on fears of adverse publicity.

 

Toronto Star is important far beyond the bail context.  The Court makes the point that publication bans do not restrict information from the public forever but merely for a limited (and relatively brief) period of time.  While this may impact on the information’s newsworthiness it does not limit public scrutiny of the judicial system.  Now, as a practical matter, if a publication ban lasts years rather than months the argument that public scrutiny is not impaired is weakened but the point remains.

 

Provided limitations on reporting judicial stories in the media is for a brief period, and are limited to situations where genuine prejudice to parties would likely occur, publication bans are quite consistent with a free and democratic society.